The central legal point established in the judgment is the nature of possession and the identification of the property in a counter claim, as well as the interpretation of relevant provisions of the Transfer of Property Act and the Easement Act.

JUDGMENT

D. Dash, J. - Since both the above noted Appeals arise out of final decision recorded in T.S. No.267 of 1991 in the Court of the learned Civil Judge, Junior Division, 1st Court, Cuttack; those had been heard together and this common judgment is passed.

It be stated here that Kailash Behera (Appellant No.1 in RSA No.254 of 2010 and Respondent in RSA No.299 of 2010) as the Plaintiff had filed the suit seeking permanent injunction against Ashok Kumar Mitra, Ajit Kumar Mitra, Aparna Mitra, Ansu Kumar Mitra and Swapna Mitra arraigning them as the Defendants. During pendency of the suit, Ajit Kumar Mitra, who had been arraigned as Defendant No.2, having expired, his legal representatives have come on record.

All those Defendants are now the Respondents in RSA No.254 of 2010 and Appellants in RSA No.229 of 2010.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. It would be appropriate at this stage to mention that in the suit, the Defendants had filed a counter claim with a prayer to pass a decree of eviction of the Plaintiff from the southern portion of the suit property better shown in the sketch map so provided in the pleading. The Trial Court decreed the suit and thereby the Defendants were permanently restrained to evict the Plaintiff and his family members from the suit premises without taking recourse to law. The counter claim of the Defendants for eviction of the Plaintiff, was, however, dismissed.

The Defendants thus having suffered from the judgment and decree passed in the suit as well as the counter claim preferred two Appeals, i.e., RFA No.84 of 2007 and RFA No.85 of 2007 under section 96 of the Code of the Civil of Procedure (for short, 'the Code') which have been heard and disposed of by learned Ad hoc Additional District Judge, FTC-I, Cuttack by the common judgment.

The First Appellate Court has set aside the judgment and decree of permanent injunction passed by the Trial Court in the suit in favour of the Plaintiff. It has, however, confirmed the judgment and decree in respect of dismissal of the counter claim advanced by the Defendants seeking the relief of eviction of the Plaintiff.

In view of the above, the Plaintiff thus having been non-suited has filed RSA No.254 of 2010 whereas the Defendants being unsuccessful in obtaining the relief of eviction of the Plaintiff as advanced in the counter claim have filed RSA No.229 of 2010. The Plaintiff in this Appeal filed by him under section 100 of the code claims that his suit be decreed granting the reliefs as prayed for.

The Defendants, while supporting the judgment and decree passed by the First Appellate Court in dismissing the suit; in their Appeal under section 100 of the Code pray that the judgment and decree passed by the First Appellate Court in the counter claim be set aside and in turn, the same be decreed granting them the relief of eviction against the Plaintiff as prayed for.

4. The subject matter of the suit is the land covering an area of Ac.0.187 appertaining to Hal Plot No.1899 under Sikkimi Khata No.47 assigned with holding No.235 of Cuttack Municipality. This has been described in the Schedule of the plaint. It is stated that the land originally belonged to Hemanta Kumar Mitra and Sarat Chandra Mitra, who are the predecessors-in-interest of the Defendants and they had inducted the Plaintiff over the suit property as a permanent tenant under an oral agreement coupled with delivery of possession. It was then agreed that the Plaintiff would provide seven (7) liters of milk per day to Hemanta and Sarat towards the ground rent and pay the municipal holding tax for the suit property. The Plaintiff accordingly constructed pucca as well as kachha houses over the suit land as also cow-shed, well etc. He resided in the said house with his family since the year 1970 and went on carrying out the milk business by delivering the milk every da